Eleven out-of-state drug companies won't be allowed to wiggle out of a lawsuit that alleges they flooded West Virginia with pain pills and helped fuel the state's prescription drug problem.
This week, Boone Circuit Judge William Thompson rejected the drug wholesalers' bid to dismiss the lawsuit. The drug companies had argued the state didn't have sufficient grounds to sue them, and that they couldn't be held accountable for the painkillers sold by pharmacies across the state.
Thompson ruled that the case should proceed because a jury could conclude that the pill distributors' "acts and omissions were a substantial factor" that damaged "the state and its citizens."
The lawsuit - initially filed by former state Attorney General Darrell McGraw in 2012 - alleges that the 11 drug wholesalers shipped an excessive number of painkillers to "pill mill" pharmacies in West Virginia. The companies also failed to report the "suspicious" orders to government authorities, according to the lawsuit.
West Virginia has the highest prescription drug overdose death rate in the nation.
Thompson's ruling marks the second time he's rejected the companies' request to torpedo the lawsuit.
Last December, Thompson kept the lawsuit alive but directed the state to file a revised complaint with specifics about prescription drug shipments to West Virginia. Thompson wanted details about how each of the drug distributors broke the law.
In a revised complaint, the state's lawyers disclosed that the 11 drug distributors shipped nearly 60 million oxycodone pills and 140.6 million hydrocodone pills - both are powerful and addictive painkillers - to West Virginia between 2007 and 2012. The updated lawsuit included pill counts for each wholesaler. The pain-pill numbers were culled from a U.S. Drug Enforcement Administration database.
In the new complaint, the state's lawyers also named "pill mill" pharmacies - such as Trivillian's in Kanawha City and Sav-Rite in Mingo County - that received excessive numbers of painkillers from some of the drug wholesalers. Trivillian's former owner, Paula Butterfield, pleaded guilty to federal charges in February. A sentencing hearing scheduled last month was postponed.
In his 56-page ruling this week, Thompson concluded that the state's allegations aren't "vague or ambiguous" - as the drug companies alleged - and the wholesalers have been put on "fair notice of the claims against them..."
The revised complaint also includes allegations that some of the drug firms paid fines and received penalties for failing to monitor suspicious prescription drug orders in other states. The wholesalers argued those past sanctions were irrelevant, and the allegations should be tossed from the lawsuit in West Virginia.
Thompson rejected those arguments.
"This assertion is without merit," Thompson wrote in his ruling. "The court concludes paying a fine to the DEA [federal Drug Enforcement Administration] for failing to monitor suspicious orders of controlled substances may be viewed as putting the [drug companies] on notice of deficiencies in their required program for monitoring suspicious orders."
The companies named in the lawsuit are: AmerisourceBergen Drug Corp., Miami-Luken Inc., J.M. Smith Corp., the Harvard Drug Group, Anda Inc., Associated Pharmacies, H.D. Smith Wholesale Drug, Keysource Medical, Masters Pharmaceutical, Quest Pharmaceuticals and Top Rx.
Several smaller companies asked that they be dismissed from the suit because they shipped only small quantities of pain pills to West Virginia - or their pill counts were "taken out of context," but Thompson rejected the request.
Two state agencies - the Department of Health and Human Resources, and the Department of Military Affairs and Public Safety - are suing the drug wholesalers. The Attorney General's Office is representing those agencies.
Officials with DHHR and Military Affairs have asked Attorney General Patrick Morrisey to add McKesson Corp., the nation's largest drug distributor, as a defendant in the case. Morrisey's office has declined, citing its ongoing investigation into McKesson's drug sales in West Virginia.
The state has a separate lawsuit - also filed in Boone County - against the nation's second-largest drug wholesaler, Cardinal Health.
Jim Cagle, a Charleston lawyer representing the state in both lawsuits, declined to comment Thursday on Thompson's latest ruling. A lawyer for AmerisourceBergen also would not comment.
Reach Eric Eyre at ericeyre@wvgazette.com, 304-348-4869 or follow @ericeyre on Twitter.